https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5000

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELCA NO. E075 OF 2025** 1. **COLLINS LISSY NDARA** 2. **JACKIE ADHIAMBO NDARA** 3. **KENNEDY OCHIENG NDARA ......................APPELLANTS** **VERSUS** 1. **JANET ANYUMBA NDARA** 2. **MICHAEL ANYUMBA NDARA** 3. **JACKTON ANYUMBA NDARA .................. RESPONDENTS** **RULING** 1. By the Notice of Motion dated 25th November 2025, the three (3) Appellants pray for an order that the Respondents, their servants and/or agents be restrained from selling and/or interfering with the house and land referred to as Mombasa/Block XII Parcel Number 196 measuring approximately 0.011 Ha located in Makupa in Mombasa County pending the hearing of the Appeal. 2. The application is supported by an Affidavit sworn by Collins Lissy Ndara (the 1st Appellant) and is premised on the grounds: 3. **That the Respondents have embarked on the process of selling the house and have infact purported to have sold the house;** 4. **That unless the orders sought herein are granted, the Appeal herein will be rendered nugatory;** 5. **That the Respondents and their agents have already started issuing verbal threats of eviction to the tenants;** 6. **That the Respondents have also threatened to evict the Appellants when the Appellants have a right and interest in the suit property;** 7. **That the interests of justice and equity demand that the orders sought herein be granted.** 8. **That the Appellants stand to suffer irreparable loss unless the orders sought are granted; and** 9. **That the Respondents will not suffer any prejudice if the orders sought are granted save that the matter stands to be decided on its merits.** 10. The three (3) Respondents are opposed to the application. In a Replying Affidavit sworn on their behalf by Janet Anyumba Ndara (the 1st Respondent), the 1st Respondent avers that the Appellants have no interest in the suit property and their application is just an attempt to bar her from exercising her rights as the absolute proprietor of Mombasa/Block XIII/196. 11. The 1st Respondent further avers that the suit property originally belonged to her biological father William Anyumba Ndara who died on 5th June 2021 and that the same was not family property even though his father allowed her cousins to live in the said house out of good will. 12. The 1st Respondent avers further that the Appellants have at all material times been aware that the suit property belonged to her father and that all these problems began after the father’s death and on the realization that the suit property had been bequeathed to the 1st Respondent. 13. In his Supplementary Affidavit sworn on 19th January 2026, the 1st Appellant avers that the transfer of the suit property to the said William Anyumba was fraudulent and that it had the unexplained, inexplicable and unconscionable effect of disinheriting the 1st Appellant’s father. 14. The 1st Appellant further avers that the suit property initially belonged to their grandfather Jacton Ndara Ajuoga and that his father Walter Mbira Ndara was a beneficiary of the properties left behind by their grandfather. 15. I have carefully perused and considered the application as well as the response thereto. I have similarly perused and considered the submissions placed before the Court by the Learned Advocates representing the parties. 16. By their application before the Court, the Appellants pray for an order of injunction restraining the Respondents from selling and/or interfering with all that parcel of land known as Mombasa/Block XIII/196 pending the hearing and determination of their Appeal. 17. It is the Appellants case that the suit property initially belonged to their grandfather one Jacton Ndara Ajuoga and that their father was fraudulently disinherited when the suit property was solely transferred to the name of the father of the Respondents. It is the Appellants case that the Respondents are now intent on selling the suit property and that they stand to suffer irreparable loss and damage unless the orders of injunction are granted. 18. As was stated by the Court of Appeal in ***Venture Capital & Credit Limited –vs- Consolidated Bank of Kenya Ltd. (Civil Application No. Nairobi 349 of 2003 (174 of 2003 UR):*** **“......an order for injunction pending appeal is a discretionary matter. The discretion must however, be exercised judiciously and not in whimsical or arbitrary fashion. This discretion is a guided by certain principles some of which are as follows:** 1. **The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited vs Kerr (1985) KLR 840 (cited in Venture Capital). The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries vs KCB (1982 – 88) KLR 1088 (also cited in Venture Capital).** 2. **The discretion should be refused where it would inflict greater hardship than it would avoid (See Madhupaper supra).** 3. **The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt vs Rent Restriction Tribunal (1982) KLR 417 (cited also in Venture Capital). And** 4. **The Court should also be guided by the principles in Giella vs Cassman Brown & Company Ltd (1973) EA 358.”** 5. In the matter before me, the Appellants contend that the suit property initially belonged to their grandfather the late Jacton Ndara Ajuoga and that their father Walter Anyumba Ndara (now equally deceased) was a beneficiary of the estate together with his brother William Anyumba Ndara who was the father to the Respondents. It is accordingly the Appellants’ submissions that they are equal beneficiaries of the suit property together with the Respondents. 6. From the material placed before the Court, it was not clear to me when the Appellants’ father had passed away and whether the Appellants had taken out letters of administration for his estate. What was clear was that the suit property was transferred to the name of the 1st Respondent’s father on 26th October 2009. 7. There was no evidence that the Appellants had taken any action against the 1st Respondent’s father to recover the land until the time of his death on 5th June 2021. Following his death, the 1st Respondent had initiated Mombasa CMCC Succession Cause No. E306 of 2021 subsequent to which she was issued with a Grant of Letters of Administration Intestate on 8th February 2022. The suit property was subsequently registered by way of transmission in the name of the 1st Respondent on 21st February 2023. 8. Arising from the foregoing, it was clear to me that the 1st Respondent had obtained the suit property through a proper legal process and that if there was any fraud in the transfer of the property to the name of her father, she was not the perpetrator thereof. 9. In the circumstances herein, I was not persuaded that there was any basis upon which this Court could grant any restraining orders in favour of the Appellants. Accordingly, I find no merit in the Motion dated 25th November 2025 and hereby dismiss the same. 10. The costs of the Motion shall be in the Appeal. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 30th day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Mr. Mwawasi Advocate for the Appellants c) No appearnce Advocate for the Respondents